Coltin v. Town of Londonderry CV-98-170-JD 05/05/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David H. Coltin

v. Civil No. 98-170-JD

Town of Londonderry, et al.

O R D E R

The pro se plaintiff, David Coltin, brought this action

against the town of Londonderry, Christopher Childs, William

Hart, Ethel Coltin, and Francis Rapisardi, asserting state law

claims for malicious prosecution and false arrest, and federal

claims pursuant to

for alleged violations of

the plaintiff's rights under the Constitution. Before the court

now are the motions for summary judgment of Ethel Coltin

(document no. 25), Francis Rapisardi (document no. 26), the town

of Londonderry, Christopher Childs, and William Hart (document

no . 21) .

Background

In 1988 David Coltin was divorced from Ethel Coltin and

awarded joint legal custody, residual physical custody, and

visitation rights of his two children. Interpersonal conflict

persisted between the plaintiff and Ethel Coltin resulting in a

number of restraining orders dictating the terms of the plaintiff's contact with Ethel Coltin. On repeated occasions the

plaintiff was found to have violated the restraining orders and

has served two sentences at the Rockingham County House of

Corrections for such violations.

On December 8, 1993, the Rockingham County Superior Court

entered a permanent restraining order against the plaintiff

providing that:

Defendant is restrained from entering onto or crossing the property line of the premises where the plaintiff resides, as a permanent order. Further, he is restrained from interfering with her person or liberty, from calling her at her place of employment, from harassing, intimidating, or threatening her, her relatives, or other household members, and from taking, converting or damaging property in which she has a legal or eguitable interest, including her mail.

This order shall be enforceable in the same manner and to the same extent as domestic violence orders issued pursuant to RSA 173-B. Violations of this order shall result in arrest and may result in imprisonment.

Defs.' Town of Londonderry, Childs, and Hart Mot. for Summary J.,

Ex. 13 (emphasis added) ("Defs.' Mot.").

On October 19, 1994, the plaintiff appeared in front of

Ethel Coltin's residence. He met defendant Rapisardi at the head

of the driveway, but Rapisardi retreated into the residence. The

plaintiff called for his children to come out of the house,

although as discussed below, it is disputed as to whether the

plaintiff was shouting or not. The plaintiff left the premises

to attempt to phone his children but returned shortly after.

2 Upon his return the plaintiff remained in front of the premises

for approximately ten minutes and sounded the horn of his

automobile. The plaintiff did not enter onto Ethel Coltin's

property.

Defendants Rapisardi and Ethel Coltin recorded the event

with a video camera and called the town of Londonderry police.

Defendant Childs, a town of Londonderry police officer, and

officer Crooks, responded to the telephone call of Ethel Coltin.

Officer Crooks discovered the plaintiff in his automobile in the

vicinity of Ethel Coltin's residence. The plaintiff acknowledged

his presence in front of the residence but asserted he was there

in furtherance of his visitation rights. Officer Crooks advised

the plaintiff not to return to the residence unless he was

scheduled to visit the children.

Meanwhile, defendant Childs arrived at Ethel Coltin's

residence. He was shown the restraining order precluding the

plaintiff from harassing defendant Ethel Coltin and other members

of the household. He was told that the plaintiff had been

shouting at defendant Rapisardi and Ethel Coltin and repeatedly

sounding his horn. He was also shown a video tape in which he

witnessed an individual identified as the plaintiff shouting at

people within the residence. The plaintiff was not arrested at

this time.

3 On October 20, 1994, the plaintiff again returned to the

residence. Again, as discussed later, the plaintiff's actions at

the time of the incident are in dispute. However, Ethel Coltin

told the responding officer that the plaintiff arrived at the

residence and repeatedly sounded his horn for approximately ten

minutes in violation of a restraining order. The plaintiff left

the residence before the police arrived but was stopped by town

of Londonderry police within the vicinity of the residence. He

acknowledged his earlier presence at the residence but again

asserted he was there in furtherance of his visitation rights.

On November 28, 1994, defendant Childs filed two criminal

complaints against the defendant. The complaints were premised

upon the events of October 10 and 20, 1994, and asserted that the

plaintiff committed the crime of stalking his wife. Defendant

Hart prosecuted the plaintiff. However, the case was dismissed

on February 8, 1995, on the basis that there were no allegations

that the plaintiff crossed Ethel Coltin's property line.

The plaintiff filed this action on February 26, 1998,

asserting claims against the defendants as follows: (1)

defendants Rapisardi, Ethel Coltin, Childs, and Hart engaged in

the malicious prosecution of the plaintiff; (2) defendants

Rapisardi, Ethel Coltin, Childs, and the town of Londonderry

falsely arrested the plaintiff; (3) defendants Childs and Hart

4 violated the plaintiff's constitutional rights by engaging in

this conduct. On October 30, 1998, the court granted defendant

Rapisardi and Ethel Coltin's motion for summary judgment on the

false arrest claim on statute of limitations grounds. Before the

court now are the summary judgment motions of defendants Town of

Londonderry, Childs, Hart, Rapisardi, and Coltin on all remaining

claims. The motions are resolved as follows.

Discussion

Standard of Review

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually reguired." Snow v.

Harnischfeaer Corp.,

(1st Cir. 1993) (guoting

Wynne v. Tufts Univ. Sch. of Med . ,

(1st Cir.

1992)). The court may only grant a motion for summary judgment

where the "pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). The parties seeking summary

judgment bear the initial burden of establishing the lack of a

genuine issue of material fact. See Celotex Corp. v. Catrett,

5

(1986); Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992). The court must view the

entire record in the light most favorable to the plaintiff,

"'indulging all reasonable inferences in that party's favor.'"

Mesnick v. General Elec. Co . ,

(1st Cir. 1991)

(guoting Griqqs-Rvan v. Smith,

(1st Cir.

1990)). However, once the defendants have submitted a properly

supported motion for summary judgment, the plaintiff "may not

rest upon mere allegation or denials of his pleading, but must

set forth specific facts showing that there is a genuine issue

for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)).

I. Defendants Childs, Hart, and Town of Londonderry

A. Section 1983

The plaintiff asserts a claim under

premised upon "the illegal false arrest and detention and

malicious prosecution of the plaintiff . . . ." Pl.'s Compl. at

9. The plaintiff asserts violations of his rights under the

Fourth, Fifth, and Sixth Amendments, and the due process and

egual protection clauses of the Fourteenth Amendment. The court

addresses the alleged constitutional violations separately.

6 1. The Fourteenth Amendment, Due Process, and Equal Protection

The plaintiff asserts that the allegedly unlawful arrest and

malicious prosecution violated his right not to be deprived of

life, liberty or property without due process of law under the

Fourteenth Amendment. However, in Albright v. Oliver the Supreme

Court held that there was no substantive due process claim under

the Fourteenth Amendment for malicious prosecution. See

(1994). Moreover, because an adeguate state law

remedy for malicious prosecution exists, there is no section 1983

procedural due process claim for such a prosecution. See Reid v.

State of New Hampshire,

, 336 n.8 (1st Cir. 1995)

("Given an adeguate state-law remedy for a procedural due process

violation, no § 1983 claims lies."); see also Meehan v. Town of

Plymouth,

(1st Cir. 1999) ("[A] § 1983 malicious

prosecution claim is not properly based on either a procedural or

substantive due process violation."). For the same reasons,

under Reid, the plaintiff's section 1983 claim for procedural due

process violations premised upon the alleged unlawful arrest also

fails. See

n.8

Finally, although it is unclear whether the plaintiff seeks

to assert a substantive due process claim on the basis of the

alleged false arrest, such a claim must fail as well. "Where a

particular Amendment 'provides an explicit textual source of

7 constitutional protection' against a particular sort of

government behavior, 'that Amendment, not the more generalized

notion of "substantive due process," must be the guide for

analyzing these claims.'" Albright,

(holding

Fourth Amendment, not substantive due process, provided basis for

plaintiff's claim of unconstitutional deprivation of liberty

interest by alleged malicious prosecution without probable cause)

(guoting Graham v. Connor,

(1989)). The Fourth

Amendment is the explicit textual source of the plaintiff's

protection from unreasonable seizure of his person. See U.S.

Const. Amend. IV. Therefore, the plaintiff's section 1983 claim

premised upon an unlawful seizure of his person, i.e., the false

arrest claim, does not constitute a substantive due process claim

under the Fourteenth Amendment. See Albright,

; see also. Singer v. Fulton Countv Sheriff,

, 115

(2d Cir. 1995) (concluding Albright stood for proposition that

"the Fourth Amendment provides the source for a § 1983 claim

premised on a person's arrest.").

The plaintiff also contends that his allegedly unlawful

arrest and prosecution violated his "right to egual protection of

the laws secured by the Fourteenth Amendment." See Compl. at 9.

The Egual Protection Clause of the Fourteenth Amendment provides:

"No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the

laws." U.S. Const. Amend. XIV, § 1. "A preliminary step in

equal protection analysis is to determine whether persons who are

similarly situated are subject to disparate treatment."

Rodriguez v. Lamer,

(11th Cir. 1995).

The plaintiff fails to state a claim of a violation of the

Equal Protection Clause because he fails to alleqe that similarly

situated people were treated differently than he. In this

context, the plaintiff must show that others subject to similar

restraininq orders were treated differently than he. This he

fails to do. Indeed, althouqh the plaintiff contests the

fairness of the investiqation of the town of Londonderry police,

in this case their conduct could not form the basis of an equal

protection claim as the plaintiff alone was the subject of an

investiqation for a suspected violation of the restraininq order.

2. The Fourth Amendment

As indicated by First Circuit jurisprudence, a section 1983

claim may lie on the basis of an arrest and prosecution in

deroqation of the Fourth Amendment. See, e.g., Meehan,

; Loge v. Pore,

(1st Cir. 1997); Abraham v.

Nagle,

(1st Cir. 1997). False arrest and malicious

prosecution claims are often closely associated and the First Circuit has remarked that "the lines between malicious

prosecution and false arrest have become blurred, to the extent

that a malicious prosecution claim may be predicated on an arrest

made pursuant to a warrant that was issued without probable

cause." Meehan,

. Where probable cause for the

disputed arrest and prosecution exists, however, the Fourth

Amendment claim fails. See Roche v. John Hancock Mutual Life

Ins. C o .,

(1st Cir. 1996) ("if probable cause to

arrest and prosecute the appellant existed, no unconstitutional

deprivation existed."); see also, Meehan,

("a

§ 1983 malicious prosecution action based upon a deprivation of

Fourth Amendment rights requires a showing of the absence of

probable cause to initiate proceedings . . . ."); see Nagle,

(probable cause "largely defeats the false arrest

claim under both federal and state law.").

"An arrest warrant complies with the Fourth Amendment if,

under the totality of circumstances, there is probable cause to

believe the suspect committed the offense." Hoffman v. Reali,

(1st Cir. 1992). "Probable cause to make an

arrest exists where the facts and circumstances of which the

arresting officer has knowledge would be sufficient to permit a

reasonably prudent person to conclude that an offense has been

committed by the person arrested."

"[T]he quantity and

10 quality of proof necessary to ground a showing of probable cause

is not the same as the quantity and quality of proof necessary to

convict." Roche,

.

On the dates at issue, October 10 and 20, 1994, the

plaintiff was subject to the Rockingham County Superior Court

restraining order of December 8, 1993. As discussed above, the

order provided that:

Defendant is restrained from entering onto or crossing the property line of the premises where the plaintiff resides, as a permanent order. Further, he is restrained from interfering with her person or liberty, from calling her at her place of employment, from harassing, intimidating, or threatening her, her relatives, or other household members, and from taking, converting or damaging property in which she has a legal or equitable interest, including her mail.

This order shall be enforceable in the same manner and to the same extent as domestic violence orders issued pursuant to RSA 173-B. Violations of this order shall result in arrest and may result in imprisonment.

Defs.' Mot., Ex. 13 (emphasis added).

The police report of the October 10, 1994, incident begins

by stating that Ethel Coltin and Rapisardi had called the police

to report that the plaintiff was "in violation of a restraining

order not to harass or intimidate[] them." Defs.' Mot., Ex. 14.

At the time of the incident Ethel Coltin showed defendant Childs

a copy of the restraining order. See i d .1 Ethel Coltin and

1Ethel Coltin also showed defendant Childs a document indicating the plaintiff's visitations rights, although she

11 Rapisardi both told the officer that the plaintiff "drove up to

the residence and started yelling toward [Rapisardi] and then to

the members of the house. [The plaintiff] drove away and came

back and parked again in front of the residence [and] began

honking the car horn."

Ethel Coltin and Rapisardi provided

written statements to this effect. The police found the

plaintiff in the vicinity of the residence at the time of the

incident and the plaintiff acknowledged being in front of the

residence earlier.

Similarly, on October 20, 1994, the police were dispatched

to Ethel Coltin's residence based upon an alleged violation of

the restraining order. See Defs.' Mot., Ex. 17. Ethel Coltin

represented to the police that the plaintiff again appeared

before the residence on a day which was not a visitation day and

began sounding his horn for approximately ten minutes. See i d .

Again, the plaintiff was found in the area of the residence at

the time of the incident. See i d .2

represented to defendant Childs that the agreed upon visitation date was October 12, 1994, not October 10, 1994. See i d .

21he court also notes the existence of a video tape, although it is not in the record, depicting a man identified to Childs by Rapisardi as David Coltin, outside of Ethel Coltin's residence, whom Childs perceived to be engaging in the above described actions on October 10, 1994. This tape was viewed by Childs both at the residence at the time of the incident and again at the police station. See Defs.' Mot. Ex. 14.

12 On this record, there is no genuine issue of material fact

as to whether a reasonably prudent person could have concluded

that the plaintiff had violated the terms of the restraining

order by harassing Ethel Coltin and members of the household on

October 10 and 20, 1994. Therefore there is no triable issue as

to whether probable cause existed for the arrest and prosecution

of the plaintiff. See Roche,

, 256 n.5; see

also, Meehan,

. Contrary to the plaintiff's

assertions, there was no need to establish that the plaintiff

crossed the property line to establish probable cause under the

language of the restraining order. Nor, contrary to the

plaintiff's allegations in his complaint, did defendant Childs

premise his criminal complaint upon the plaintiff's appearance at

Ethel Coltin's residence. See Compl. at 4. The affidavit in

support of the arrest warrant and the criminal complaint were

both clearly premised upon harassing and intimidating behavior.

See Defs.' Mot., Ex. 20.3

Finally, in concluding its discussion of Fourth Amendment

issues, the court notes that although the plaintiff alleged in

the background facts of his complaint that the prosecutor refused

3Central to this case are alleged violations of the prohibition of harassment and intimidation in the restraining order, rendering the plaintiff's reliance on alleged visitation rights on the dates in guestion irrelevant.

13 to provide a videotape of the plaintiff's conduct on October 10,

1994, this is not identified as a basis for any of the federal

claims in the complaint. See Compl. at 55 26, 41-48. Moreover,

although the plaintiff raised the issue of the videotape in his

memorandum of law, he provided no evidence that he was precluded

from viewing the tape or that he was denied access to the tape as

part of the criminal proceedings against him.

In contrast, the record contains testimonials of defendant

Hart that he provided the plaintiff with access to the videotape

at the Londonderry Police Department and that the tape was

subseguently viewed by the plaintiff and or his counsel. The

only evidence in the record, therefore, indicates that the

plaintiff did have access to the videotape. The mere allegations

of the plaintiff otherwise is insufficient to establish a genuine

issue of material fact. See Anderson v. Liberty Lobby, Inc.,

(1986) .

3. Fifth and Sixth Amendments

The plaintiff also asserts violations of his Fifth and Sixth

Amendment rights, although he does not specify what actions

violated those rights, nor how they violated those rights. To

the extent that the plaintiff premises his claims upon alleged

violations of the due process clause of the Fifth Amendment, his

14 claim must fail as it is against state actors, not federal, and

therefore must be analyzed under the Fourteenth Amendment, supra.

See Smith v. Kitchen,

(10th Cir. 1998) ("From

the earliest interpretations of this amendment, courts have

agreed that the Fifth Amendment protects against actions by the

federal government."); Winfield v. Bass,

, 530 n.2

(4th Cir. 1997) ("Further, because Appellants are not federal

actors, our analysis would be governed by the Fourteenth

Amendment rather than the Due Process Clause of the Fifth

Amendment."); United States v. Greene,

(8th

Cir. 1993) ("An action that violates the fourteenth amendment

guarantee of egual protection when committed by a state actor

violates the due process guarantee of the fifth amendment when

committed by a federal actor.").

Nor can the court discern any other basis for a claim under

the Fifth Amendment in the plaintiff's complaint. There is no

allegation of a property taking, double jeopardy, self

incrimination, or improper grand jury proceedings. See U.S.

Const. Amend. V. Similarly, the court perceives no grounds for a

Sixth Amendment claim in the plaintiff's case.

Given the determination that no genuine issue of material

fact exists as to whether the conduct of Childs or Hart resulted

in a violation of the plaintiff's constitutional rights, the Town

15 of Londonderry is entitled to entry of judgment in its favor on

the plaintiff's federal claims. See City of Los Angeles v.

Heller,

(1986).4

41he court notes that defendant Town of Londonderry is also entitled to summary judgment in its favor on the plaintiff's section 1983 claims because the plaintiff did not establish a custom or policy of the town that violates his federal rights. See Smith v. Edwards, F.3d ,

(2nd Cir. March 24, 1999) ("Under

, a municipality may be held liable for a constitutional violation if the plaintiff can prove that the violations resulted from a municipality's customs or policies.").

In this case there are no facts alleged in the plaintiff's complaint that could support a claim that the town had a policy or custom that resulted in the derogation of the plaintiff's rights under federal law. Indeed, the complaint clearly evidences an intent to base the section 1983 claim against the town upon a theory of respondeat superior. See Compl. 542 ("The defendants Christopher Childs and William R. Hart were at all relevant times respectively employed by the defendant town of Londonderry as police officer and prosecutor."). The Supreme Court has "consistently refused to hold municipalities liable under a theory of respondeat superior." Brown, 520 U.S. at 403.

Finally, although the plaintiff asserts that the town had an official policy to arrest the plaintiff if he attempted to pick up his son, "even on a scheduled visitation day," see Pi.s' Mem. of Law at 9, and that it's zero tolerance towards domestic violence issues violated due process, see i d . at 11-12, the evidence does not support such assertions. Instead, the record and the plaintiff's own admissions in his arguments clearly indicate the plaintiff's repeated disregard for court orders and the plaintiff's subseguent arrest in accordance with the town's policy of enforcing those court orders. The court concludes that the plaintiff has failed to establish a genuine issue of material fact regarding a policy or custom in derogation of the plaintiff's federal rights.

16 4. Immunity

In the alternative, defendants Childs and Hart are also

entitled to summary judgment on the plaintiff's section 1983

claims on immunity grounds. In Harlow v. Fitzgerald the Supreme

Court established that under the doctrine of gualified immunity:

government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

(1982). "Defendant police officers are

shielded if . . . at summary judgment, there is no genuine

dispute of material fact that would prevent a finding that the

defendants' actions, with regard to applying or following such

clearly established law, were objectively reasonable." Vargas-

Badillo v. Diaz-Torres,

(1st Cir. 1997). The First

Circuit has "held that it is objectively reasonable for a police

officer to seek an arrest warrant so long as the presence of

probable cause is at least arguable." Hoffman v. Reali,

(1st Cir. 1992). Similarly, a prosecutor may be

entitled to absolute immunity if the cause of action arisesfrom

conduct that is related to the prosecution of a case, see Guzman-

Rivera v. Rivera-Cruz,

(1st Cir. 1995),

although "the availability of absolute immunity turns on a

functional analysis of the prosecutorial activity under

17 consideration," Harrington v. A l m v ,

(1st Cir.

1992). In Harrington, the court held that the decision to

prosecute or not falls within "the precise zone of

decision-making the Supreme Court has placed at the center of the

immunity doctrine." I d . at 42 n.3

In the case at hand the plaintiff's claims arise from an

allegedly unlawful arrest, detention, and prosecution of the

plaintiff. See Compl. at 5 45. The court's preceding discussion

has already established the lack of a genuine issue of material

fact as to probable cause for the plaintiff's arrest and

prosecution. The actions of defendant Childs were therefore

objectively reasonable. Moreover, the decision of defendant Hart

to prosecute the claim against the plaintiff falls sguarely

within his prosecutorial responsibilities for which he is

absolutely immune.

B. State Law Claims

1. Jurisdiction

The court's subject matter jurisdiction over the case at

hand was initially premised upon its original jurisdiction over

the plaintiff's section 1983 claims and its supplemental

jurisdiction over the state law claims. See

(a) (West 1999) (providing for "supplemental jurisdiction

18 over all other claims that are so related to the claims in the

action within such original jurisdiction that they form part of

the same case or controversy under Article III of the United

States Constitution.") . However, in light of this court's

granting of summary judgment on the plaintiff's only federal law

claims in this case, the court must "reassess its jurisdiction,

this time engaging in a pragmatic and case-specific evaluation of

a variety of considerations that may bear on the issue." See

Camelio v. American Federation,

(1st Cir.

1993). Factors for consideration include "the interests of

fairness, judicial economy, convenience, and [of particular

importance] comity."

"The balance of competing factors

ordinarily will weigh strongly in favor of declining jurisdiction

over state law claims where the foundational federal claims have

been dismissed at an early stage in the litigation."

In this case the action has progressed to the point where

discovery is closed and trial is scheduled for the near future.

C f . Camelio,

. Failure to address the claims will

substantially lengthen the time reguired to resolve the dispute.

Cf.

The case does not present complicated issues of state

law. Cf.

The legal analysis and factual inguiry reguired by

the state and federal claims are very similar. The court

concludes that addressing the remaining state claims advances the

19 interests of fairness, judicial economy, and convenience. Nor in

this case, given the clear state law standards to apply, do

comity concerns necessitate remand to the state court. Cf.

Camelio,

("perhaps most importantly in this case,

the claims that the court dismissed raise substantial questions

of state law that are best resolved in state court.").

2. Malicious Prosecution

A claim for malicious prosecution under New Hampshire law

has four elements: (1) the defendant must be instrumental in

initiating the criminal charges; (2) the plaintiff was acquitted

or otherwise successful on the merits; (3) the defendant acted

with malice, "that is, with a purpose other than bringing a

suspected offender to justice;" and (4) that the defendant lacked

probable cause to believe that the plaintiff had committed acts

that constituted a crime. McGranahan v. Dahar,

(1979). In New Hampshire, "[p]robable cause in the malicious

prosecution context has long been defined as 'such a state of

facts in the mind of the prosecutor as would lead a man of

ordinary caution and prudence to believe or entertain an honest

and strong suspicion that the person arrested is guilty.'" Stock

v. Byers,

. 846 (1980) (citations and quotations

omitted). Given the facts of this case as discussed above, the

20 court concludes that there is no genuine issue of material fact

regarding the existence of probable cause and the plaintiff's

state law claim for malicious prosecution must fail as well.

3. False Arrest

Defendants Hart and Childs move for summary judgment on the

plaintiff's state law claim of false arrest asserting that the

claim is barred by New Hampshire's three year statute of

limitations for personal injury actions. See RSA § 508:4 (1997).

The plaintiff concedes the applicability of the three year

statute of limitations. See Pl.'s O b j . at 2. However, the

plaintiff contests the defendants' motion on the grounds that the

defendant's conduct is a continuing course of conduct.

False arrest is the "unlawful restraint of an individual's

personal freedom." Hickox v. J. B. Morin Agency, Inc.,

(1970). In his complaint the plaintiff alleges that he

was unlawfully arrested on October 31, 1994. Under New Hampshire

law a cause of action accrues and the statute of limitations

begins to run "'when the plaintiff discovers . . . both the fact

of his injury and the cause thereof.'" Conrad v. Hazen,

(1995) (citations and guotations omitted). The plaintiff's

cause of action therefore accrued and the tolling period began to

run on October 31, 1994, the date of the plaintiff's arrest. The

21 complaint was filed February 26, 1998.

The court finds untenable the plaintiff's assertions that

the defendants were in continuous violation of the plaintiff's

rights. There is no allegation in this case that the plaintiff

was continuously under unlawful arrest. The only allegation of

arrest was on October 31, 1994. For this reason the plaintiff's

reliance on Murphy v. Timberlane Regional School District is

misplaced. See

(1st Cir. 1994). At

issue in Timberlane was the date of accrual of the school

district's alleged "continuous violation of its [duty] to pursue

an administrative resolution to [an] IEP stalemate." I d . at

1195. Here there was no continuing breach of an ongoing duty.5

51he court notes that the lack of a genuine issue of material fact regarding probable cause reguires granting summary judgment on the plaintiff's state law false arrest claim on that basis as well. See, e.g., Hickox v. J.B. Morin Agency, Inc.,

(1970); Larreault v. First Nat'l Stores,

(1945) ("the defendant, in order to avoid liability, has the burden of justifying his act by showing that he had probable cause for imposing the particular restraint.").

22 4. Immunity

Defendant Hart is also entitled to summary judgment on the

plaintiff's state law claims on the basis immunity. Under New

Hampshire law, "prosecutorial immunity exists within the rubric

of judicial immunity and is absolute when functionally related to

the initiation of criminal process or to the prosecution of

criminal charges." Belcher v. Paine,

(1992).

"[T]he decision to indict, even when based on an incomplete

investigation, is clearly within the scope of absolute immunity."

Indeed, "[a]11 judicial officers when acting on subjects

within their jurisdiction, are exempted from civil prosecution

for their acts . . . [and] this doctrine has been extended to

apply to the acts and conduct of all public officers in their

exercise of judicial authority." I d . (citations and guotations

omitted). The plaintiff's claims are premised upon his alleged

wrongful arrest and prosecution, and the conduct which the

plaintiff asserts gives rise to the malicious prosecution claim

is functionally related to initiating criminal process and

prosecution.

II. Defendants Ethel Coltin and Rapisardi

Defendants Ethel Coltin and Rapisardi move for summary

judgment on the plaintiff's state law malicious prosecution

23 claim, arguing that the plaintiff cannot establish a genuine

issue of material fact regarding probable cause or the

defendants' malice.6 As discussed above, to be successful in an

action for malicious prosecution under New Hampshire law a

plaintiff must establish, among other things, that the defendant

acted with malice, "that is, with a purpose other than bringing a

suspected offender to justice," and that the defendant lacked

probable cause to believe that the plaintiff had committed acts

that constituted a crime. McGranahan v. Dahar,

.7

In support of her motion for summary judgment Ethel Coltin

attests that on October 10 and 20, 1994, the plaintiff arrived at

her residence and began shouting at her and Rapisardi and

sounding the horn for up to ten minutes. Ethel Coltin Aff. at 4.

Defendant Rapisardi similarly attested as to the events of

defendant Rapisardi also moves for summary judgment arguing that he was not instrumental in the initiation of the prosecu­ tion, although the court need not reach this ground given the court's determination regarding probable cause.

71he plaintiff asserts that the "pertinent issue in this action [is] the visitation rights that were in place in October 1994 and how these visitation rights came into place." Pl.'s Obj. to Def. Rapisardi and Ethel Coltin's Mot. for Summ. J., Me. at Law at 2. Contrary to the plaintiff's assertion, central to this action is the Rockingham County Superior Court's restraining order of December 8, 1993. For the purposes of the immediate summary judgment motions in this case, the court must determine whether a genuine issue of material facts exists regarding probable cause for believing that the plaintiff was in violation of the December 8, 1993, restraining order on October 10 and 20, 1994 .

24 October 10, 1994.

In his objection to the defendants' motion for summary

judgment the plaintiff seems to contest this characterization of

his behavior. However the plaintiff has offered no evidence to

the contrary to create a genuine issue of material fact. Mere

allegations and assertions are inadeguate. See Anderson v.

Liberty Lobby, Inc., 477 U.S. at 256. Moreover a careful reading

of his arguments reveals that he does not dispute statements that

he was repeatedly sounding his horn. The court therefore

concludes that there is no genuine issue of material fact as to

whether probable cause existed to believe the plaintiff was in

violation of the restraining orders on the date at issue.

Conclusion

In light of the above discussion, the court grants the

summary judgment motions of the defendants town of Londonderry,

Hart, and Childs (document no. 27), defendant Ethel Coltin

25 (document no. 25), and defendant Rapisardi (document no. 26)

The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

May 5, 1999

cc: David H. Coltin, pro se Dyana J. Crahan, Esquire Jay Eric Printzlau, Esquire

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